AB 288, enacted by the California Legislature in September (which CDF reported on in September and October of this year), mirrors a similar New York law and authorizes California’s Public Employment Relations Board (PERB) to enforce provisions of the National Labor Relations Act (NLRA) in the private sector when the National Labor Relations Board (NLRB) declines or is unable to act.
More specifically, AB 288 encourages and empowers private-sector unions and employees to take their disputes to PERB if the NLRB fails to act within statutory timeframes. Under AB 288, when the NLRB does not have a quorum or is otherwise not functioning, workers could petition PERB to:
- Decide unfair labor practice cases that the NLRB has not resolved within six months;
- Certify a union as the exclusive bargaining representative;
- Order employers to bargain, reinstate terminated workers, or participate in binding mediation; and
- Impose civil penalties, with funds earmarked for PERB’s enforcement efforts.
In short, the bill attempts to create a parallel state enforcement process for rights already guaranteed under the federal NLRA.
Shortly after enactment of AB 288, the NLRB filed a lawsuit in the Federal Court for the Eastern District of California seeking to enjoin enforcement of the statute on the grounds that it is preempted by the NLRA pursuant to the Garmon preemption doctrine. On Friday, Chief Judge of the United States District Court for the Eastern District, Judge Troy L. Nunley, ruled on the preliminary injunction and issued his decision granting the injunction and finding that AB 288 is preempted under Garmon.
Judge Nunley held that the court is “unable to consign the notion that Congress’ interest in the NLRB’s independence when it enacted the NLRA was so strong that that in its absence, Congress intended the NLRB to be stripped of its authority.” Judge Nunley went on to find that Congress’ foremost interest in enacting the NLRA and establishing the NLRB was “uniformity and avoidance of inconsistency.” Based on these findings, the Court issued its Order enjoining enforcement of AB 288 finding it to be preempted by the NLRA.
What Does This Mean For California Employers?
AB 288 only takes effect when the NLRB is unable to act (e.g., when the Board lacks a three member quorum or if there is a federal government shutdown). Although the NLRB was without a quorum and unable to process cases for almost eleven months, that all changed in mid-December. As we recently reported, with the appointment and the confirmation of Scott Mayer and James Murphy, the NLRB now has a quorum. Therefore, AB 288 was rendered temporarily moot, at least until the Board is again unable to act.
The next NLRB Board Member to have his/her term expired is David Prouty in August of 2026. Therefore, unless President Trump fires another NLRB Board Member in the next eight months, the NLRB will have a 3 person quorum through late August. Two of the five NLRB Board positions remain open. If a new Board member is not nominated and confirmed before August 27, 2026, the NLRB will again be without a quorum. Judge Nunley’s decision (unless overturned on appeal) confirms that should that occur, or should there be another extended federal government shutdown, unions and employees will be unable to obtain relief from the California PERB for private sector employer disputes and matters.
